A TALK ON ANNULMENT

1. INTRODUCTION

90% of Catholics in the United States who have had a civil divorce do not get as far as making serious enquiries about nullity. It is estimated that three quarters of Catholics who get a civil divorce eventually have a second marriage. The Pope has shown his concern over this matter and one suggestion is that, having gone through a painful divorce, the prospect of going. through the process of annulment is rather off-putting.

This probably isn't the main reason though, it is more likely to be ignorance. There are still a lot of people who think or have been told, that it doesn't apply to them. For example, the number of people who think that the only grounds for a nullity in the Catholic Church is non-consummation of a marriage. In other words "If I've been married for 20 years and have 4 children that clearly means that I have consummated the marriage and therefore cannot get a nullity". There are a remarkable number of people who believe this is the case. Therefore many people do not apply for an annulment for they do not think it applies to them but to only a very small percentage of people.

Alternatively they may think it is going to be an extremely expensive process. Certainly in the U.S. and Great Britain this is not the case, compared to a normal divorce procedure. The charge for the diocesan tribunal is only a small percentage of the actual costs: for example no fees are charged for the advocate whereas in the civil divorce you have to retain a lawyer and pay the fees no matter what the outcome is.

2. ANNULMENT COMPARED TO DIVORCE

What exactly is a nullity? A nullity is not a divorce. There is divorce within the Catholic Church but this applies only to a very few people in limited situations. A nullity is a statement after evidence has been taken with interviews and discussions, that the marriage for a variety of reasons did not fulfil the very high standards set for what the church understands to be a fully Christian marriage. A nullity is therefore saying that from the very beginning there was something, at the time of the marriage or before the marriage, which made it impossible for this to be a fully Christian marriage with all that that implies.

A number of people think that for a Catholic to get a divorce is either a sin or alternatively it results in excommunication; neither of these are true. The church has never excommunicated anybody for getting a divorce: quite the contrary you cannot complete a nullity unless you have had a civil divorce because the decree nisi is taken as evidence of irretrievable breakdown, that's the most conclusive evidence of all. So any idea that the process of getting divorced, let alone the question of getting remarried, puts you outside the church or puts you in any sense off-side as far as the church is concerned, is wrong.

What about the Catholic who without a nullity does actually remarry a second time. Probably that means in a registry office in this country. Does that excommunicate people from the church? The answer to that question is also very simple, and that is no. If you contract a second marriage without your first marriage being nullified in the Catholic tribunal it does mean that the church will not recognise your second marriage as a Christian marriage in the full sense, but it does not mean that you are excommunicated. Iâ€™m going to leave the question of reception of the sacraments if you are in that situation to the very last question. But it does mean you are not excommunicated, you are not excluded from the Church. However the present canon law is very explicit in saying that Catholics who find themselves in the situation of being in a second marriage without a nullity probably because they are unable to get one for a variety of reasons should not consider themselves outside of the church and should be encouraged to lead as fully as active part in the church as they possibly can.

3. EXTENSION OF GROUNDS OF ANNULMENT

I would like to make a point about the extension of the grounds of annulment in the Catholic Church. There has been quite a considerable extension of the possibilities of a nullity. People who have had the experience of trying to get a nullity 20 years ago should not assume the position is the same now as it was then. Sometimes you will hear horror stories of people saying "they made me" feel as though I was a real so and so" when I applied or "they seemed to want to find as many possible reasons as they could not to give me one". On the whole that is not the case now or it certainly shouldn't be. The idea that it takes about 5 to 10 years which sometimes it did in the past is also not the case. The average time for an ordinary nullity case in this country (ie England & Wales) is somewhere around a year to 18 months if it is a straightforward case; if itâ€™s a more complicated case it may be up to 2 years. If its longer than 2 years then there is something wrong with the tribunal and it probably means that they are overworked. In that situation, as I have had to advise somebody, one would feel one had the right to apply for a transfer of the case to another diocese. A friend of mine recently received a nullity in this country after 5 months so that's the bottom end, but that is fairly rare. So it's rare to be less than 6 months and its rare to be as much as 2 years.

The extension of the grounds really has to do with the fact that the church's theology of marriage has developed and enriched particularly since the second Vatican Council. In the old days marriage was seen as a contract, a legal binding contract between two people; in other words it was conceived in very legal terms. I think since Vatican II we have a much richer idea of marriage, but what that has done is actually to raise the Catholic Church's understanding of what a fully Christian marriage is to a very high ideal indeed. Now it is because of that the church has had to face the fact that if they are going to set such a high ideal for what they mean by a fully Christian marriage, that this means there is going to be an increased percentage of people who are not able to match that ideal.

Therefore the need for a nullity would probably increase and so would the psychological grounds for a nullity, that is to say, immaturity at the time of the marriage and a failure to understand the full Christian, spiritual and moral implications of exclusively committing yourself for life to another person. This is often simply not within the grasp of people. So, for example in some dioceses, it is more or less general practice that if you were married under the age of 21, certainly if you were married while you were still in studies and if that marriage manifested serious difficulties within the first couple of years, even if it staggered on for quite a bit longer, it is assumed that at the time the marriage was undertaken the two people were not sufficiently mature. In those cases annulment is fairly easy. So the main extension is on psychological grounds, what the lawyers like to call "lack of due discretion", which put in every day language, simply means that you were not ready.

4. THE DIOCESAN TRIBUNAL

Who grants a nullity? A number of people think that it is still Rome. The answer to that in 90% of cases it is your local diocesan tribunal. Only very complicated cases, or cases on appeal for a variety of reasons, go to Rome; but that's a very small percentage.

How do you apply for a nullity? The most usual way of applying is to approach your local parish priest or a priest whom you trust and have a good relationship with, which may or may not be your parish priest, ideally it will be but sometimes it isnâ€™t. That is the most usual way and he will take the initial interview and advise on whether he thinks you have a reasonable case, in which case he will then send the papers to the Diocesan Tribunal. However, you do have the right to go directly to the Diocesan Tribunal. Some Diocesan Tribunals are a bit reluctant about this because they will probably say to you, "Why didn't you ask your parish priest?" Well, without going into that, there may be a thousand and one reasons why that is not possible. I think it is important that you realise you do have the right to approach the Diocesan Tribunal directly. However, I would advise you that, unless there are very good reasons, it is easier for everybody if you go to a local priest first. But do bear in mind your right to approach the Tribunal directly.

A story I can tell you about was that one of my Jesuit friends who was doing a supply in a particularly large hospital in this country. There was a lady there dying of cancer and she asked to see him and he went to see her. She spoke about her marriage situation: she had been divorced for about 30 years, and had been in a second marriage for about 25 of those. In her first marriage she had had no children but she had 3 from her second marriage, which was a very happy marriage. When she was thinking of remarrying she applied to her local parish priest and was told she had no chance of a nullity. Once she found that she had cancer and wanted to put things right with the church, she went to see her present parish priest who was extremely sympathetic to her but also told her she had no chance. She discussed the very basic details with my friend, who was the hospital chaplain, who said that he could think of 3 grounds for a nullity. In other words she had been badly informed not out of malice but simply of ignorance. He then rang the Diocesan Tribunal and they told her not to go back to any parish priest but come straight to them and they would sort it out, which they did within a few months.

5.THE ANNULMENT PROCESS

The process, very briefly that you are likely to go through, I will reduce it to very simple terms. You will be assigned an advocate by the Diocesan Tribunal who will interview you. You will fill out a form first of all which gives all the basic details and you do that in your own time. Then you return with the form and there will be a basic interview in the course of which you will presumably put forward the names and addresses, if you know them, of certain witnesses whom you would like to give evidence in favour of the case. Those witnesses are themselves interviewed and that is where the delays tend to happen because the real problem is finding the witnesses. They could be anywhere in the country and indeed anywhere in the world and they have got to negotiate with their local tribunal for them to be interviewed somewhere else and the papers to come back.

So the most common cause of delay is that period when they want to find and interview the witnesses. Normally there probably wouldn't be any need for you to have another interview unless something that comes out from what the witnesses say needs to be clarified. In this case there would maybe be a second interview, with one person. You never appear before a court, there is no such thing as a court. There is no cross examination. A lawyer for the opposite case is not going to come along and try and do you down, that doesn't happen.

Your own advocate however, may ask you some very penetrating questions which, if you are particularly sensitive at the time, may make you feel that she/he is not really on your side; this isn't the case. It is simply to prevent the need for more and more interviews and to make sure the case is absolutely clear. So don't be put off by that. Some advocates just happen to be better at human relations and put it across better: others can seem a little intimidating. It's not because they are trying to prove you wrong but because they want to make sure you are clear about what you are saying, and they are clear that they understand what you are saying.

6. GROUNDS FOR ANNULMENT

The main thing I want to say is the summary of the grounds for nullity. This is where I am going to be very simple. I am going to concentrate on the main ones and only mention the other ones in passing at the end.

There are basically 3 categories of nullity in the Catholic Church or perhaps more accurately there are 3 ways in which a marriage is brought to an end in the Catholic Church. The first two are nullity in the strict sense and the third is divorce. There are two forms of nullity. The first is called formal annulment. This means that the cases legally prove, with evidence given by yourself and the witnesses you suggest, that a sacramental marriage was not present at the time when you had the marriage ceremony; that means you go through the full tribunal procedure. That is the most common form of nullity.

The second form is called a documentary case and that means that there was some formal bar to the marriage which can be easily documented, for example that the proper marriage ceremony did not take place, that a dispensation was needed and wasn't got, that there had been a previous marriage which had not been properly annulled and the papers were not available. Now those documentary cases need no evidence and no interview except the presentation of the relevant document to prove your case.

There is another way a marriage can end in the Catholic Church, it is what's called the Pauline Privilege and the Petrine Privilege, which are not strictly speaking annulments, but are really divorces; in other words they are the ending of a marriage which was recognised by the church as a marriage.

6.1 FORMAL ANNULMENT

The most common nullity is the formal nullity in which you present evidence and you go through the full tribunal procedure. The three most frequent grounds for nullity, (80-90% of people come under these categories) are psychological, problems about consent and force. Psychological is the most common these days and about 80% of nullity cases involve psychological grounds although they may well involve other grounds too. These are surnmarised in the new code of Canon law as, a) lack of sufficient use of reason at the time of marriage or immaturity, b) lack of real judgement and discretion concerning the nature of marriage and its obligations and c) a serious psychic anomaly which means you could not assume the obligations of marriage at that time; it doesnâ€™t mean that you canâ€™t now, or that you never can but you couldnâ€™t at the time of the marriage.

All these point to what is true at the time of the first marriage . However, Rome has accepted that in some cases, the evidence that something was present at the time of the marriage only emerges afterwards. For example, a person may only fully realise that they are homosexual two years after a marriage. That doesn't mean to say that they suddenly became homosexual; they always were. Therefore it was prior to the marriage but they only came to a full realisation afterwards. That would be an example of evidence which is after the marriage but which points to something which was true at the time. Many nullity cases which could be granted on other grounds than psychological are often best approached through psychological grounds because they are the easiest ones to deal with. For example. A man who was pressurised to marry his pregnant girlfriend, could put forward a case under the heading of force, but it would probably be much more difficult to prove and therefore he would probably do better to put a case under psychological immaturity, that he lacked proper judgement at the time of the marriage. What are the kind of signs of psychological grounds for nullity that one can look for if you're trying to think what was going on when two people got married? I'll start with the most obvious ones which are probably the minority ones and end up with the most common one. Firstly a person who is a severe epileptic, that is to say a person who is subject to fits is also very likely, if the person had regular fits around the time of the marriage to lack judgement, because of the effects that such fits have. Secondly, intoxication at the time of marriage. A rare case but the petitioner could say "I was stoned out of my mind because I was scared stiff and I didn't know what I was saying". More seriously, alcoholism or any form of addiction can be grounds for a nullity. Homosexuality may also be a ground: now this is not a condemnation of homosexuality. It is merely a recognition that a person who is homosexual is, in most cases, unlikely to be able to sustain a heterosexual marriage. Not in all, but in most.

The most common form of nullity is immaturity, which sounds terribly vague, which it is. What does this mean? How do I know that either I or my partner were immature at the time of the marriage. Think about some of the following: financial irresponsibility; irresponsibility about home life or about the question of children. Excessive dependence on parents. Rebellion against parents. Excessive reliance on peer approval. In other words these are pointing to people who are not fully mature. Drinking, serious authority problem, in other words coming out of adolescence. As we all know adolescence can go on for a long long time, it's got nothing to do with the age. An unstable work record. Rather casual series of relationships up to fairly close to the marriage. General emotional immaturity which is probably more difficult to quantify.

The age of marriage is increasingly a question. I mentioned that some tribunals would argue that in our kind of society today marriage of students or marriages of people under the age of 21 that manifest serious difficulties fairly quickly are almost always invalid.

A fairly eminent American canon lawyer has summed up this business of psychological grounds fairly simply in the following six ideas which may make it a bit more intelligible. At the time of the marriage was there really the possibility on the part of both partners for a permanent and fruitful commitment to the other? A permanent fruitful and exclusive commitment to the other. Was there at the time of the marriage an openness to children; it doesn't matter what happened afterwards, but at the time of the marriage was there an openness to children? "Would I honestly say that both of us were averagely stable? Were we Averagely emotionally mature? Were we financially responsible? Were we really able to cope with the ordinary stresses of marriage?" So those are the main indicators under the most common form of nullity these days. which is on psychological grounds which can be termed, lack of due discretion.

The second most common form of nullity concerns consent at the time of the marriage. What is understood here is that consent musn't just be psychologically possible, but that it must have been wholehearted, nothing held back. Any conscious conditions or exclusions invalidate a fully sacramental marriage in the Christian sense. Now these could be total exclusion or total conditions. For example, "I went through the marriage but I had no real intention of going through the marriage"; "I did it to please my parents"; "I did it to give our illegitimate child a name"; "I did it in order to improve my standing in the company by marrying the bosses daughter".

Or they could be more commonly partial, for example, "I reserved mentally the right at the time of the marriage to get divorced if the thing didn't work out". Now that is different from recognising in any marriage that something may go wrong, but "I consciously reserve the right to divorce". In other words "I believe that divorce is a right and I would exercise it if things went wrong". "I wasn't too clear that this was supposed to be totally faithful". "I decided, in my own mind, against having any children in this marriage".

The third most common ground for nullity is force. Shotgun marriage, in the literal sense as opposed to the metaphorical sense. What this means is that a marriage is invalid if it was entered into due to any kind of force or fear inflicted from the outside even if that was unintentional on the part of the person inflicting it. The problem about this is that it is quite difficult to prove. But for example, in the case of a pre-marital pregnancy in certain societies even now, a great deal of moral pressure is put on a person to do the right thing, whether that person is the girl concerned or the father. If it can be proved that force or fear was serious then it might be grounds for nullity.

6.2 PAULINE AND PETRINE PRIVILEGES

Now I come to third category which is what I call "Catholic Divorce" and this is fairly rare.

a) Pauline Privilege

This is based on the first letter of St Paul to the Corinthians (I Cor 7: 8-15). It can be used only when both parties to a valid marriage are unbaptised. If one later converts and is baptised, he or she obtains the right to break the bond and remarry if the unbelieving spouse refuses to "cohabit peacefully". That is if the unbeliever attempts to hinder the practice of the new Faith. The assumption underlying this privilege is that a marriage between two unbaptised persons is only "a natural bond" and therefore can be broken if it is "for the good of the Faith" to do so.

b) Petrine Privilege

This is an extension of the Pauline Privilege and did not emerge from St Peter's letters, but rather because it derives its authority directly from the power of the Pope as the successor of St Peter. In this case it must be established with certainty that one of the parties to the original marriage was not baptised. A petition is then put to the Pope asking that the former union be dissolved "in favour of the Faith" of the Catholic party who is now involved eg: an unbaptised person who wishes to marry a Catholic. - a previously unbaptised person now baptised as a non-Catholic. Whilst these cases are rare, adult baptism in some other Faiths may result in a few unbaptised people wanting to remarry in a Catholic Church

6.3 UNCOMMON GROUNDS FOR ANNULMENT

One uncommon ground is that you were not at the age of marriage, which in the Catholic Church is 14 for a girl and 16 for boy. Whatever the law of the country says or indeed whatever the law of the local church says. Secondly, you marry somebody who is in sacred orders, is a priest who hasn't been laicised or you marry a nun who hasn't been released from her vows. Abduction, that doesn't mean elopement it means forcible abduction. Murder, you bumped off your previous spouse in order to marry someone else. That consciously or unconsciously you were within the prohibited degrees of relationship, either by blood in other words, two children were adopted by different sets of parents when they were very young and never knew each other as brother and sister; they meet years later, get married and suddenly find they are brother and sister. Obviously they are within the prohibited degrees of relationship and they will get nullity. Likewise if they are within the prohibited degrees of non-blood relationships; so for example, the same situation as before but not brother or sister rather brother-in-law and sister-in-law. In other words no blood relationship but they still have a what is called "a relationship of affinity". The same for legal relationships, for example unknowingly or possibly knowingly I marry my adopted brother who has no relationship to me by blood.

Ignorance of the actual nature of marriage: this is not the same as lack of due discretion (incapability of really understanding the implications of marriage,): this just means actual ignorance of the actual nature of the marriage. "I never realised it was for life, I thought it was a 5 year trial".

"Error of person" could be a straight substitution. If you remember back to the bible Jacob married Leah thinking she was really Rachel. He would have had grounds for nullity under error of person as he was given the wrong woman. More common than error of person is that you married a person thinking he/she was of a particular kind to find that he/she wasn't. The most common ground there, though they are fairly rare, is "the person failed to tell me before we got married that he/she had been previously married, even though that marriage had been nullified. If I had known that he/she had been previously married I would never have married them, I wanted to marry a virgin". Or that they were sterile and didn't tell you. Sterility is not a grounds for nullity unless you didn't know when you got married that the other person was sterile.

6.4 DOCUMENTARY CASES

The documentary annulments are where there is an absence of certain legal conditions at the time of the marriage. Here you only have to produce a document to prove it, you don't have to go through an interview. The process is usually that a proper marriage ceremony wasn't gone through and that should be fairly easy to prove or that secondly there was a previous marriage which hadn't been annulled.

7. CONSEQUENCES OF NOT RECEIVING AN ANNULMENT

A very difficult area that many people face is "suppose I can not get nullity, what do I do"? There may seem to be very good grounds but we can't prove it legally because somebody refuses to give evidence or they are difficult to locate: so there are technical reasons why I can't get nullity. In other words the tribunal may say you have a very good moral case but the evidence just simply isn't there. This sometimes does happen. Or possibly, "I've gone through the tribunal and they said we are very sympathetic towards my problem but they simply cannot find grounds even wide though they are for giving a nullity". So either a technical or a simple fact that there are no grounds. What do you do, particularly if you have already contracted a second marriage which is not Recognise by the church which you think put you off-side with regard to the sacraments

Can I reiterate that neither getting a divorce nor remarrying results in excommunication, even though that may be without nullity. However the church has a funny little law which says that a person who has contracted a second marriage outside the church without nullity, is not supposed to go to the sacrament of the Eucharist. Now an increasing number of people would raise questions about that for a whole variety of reasons. One is, well if they are not excommunicated what's the precise legal status of saying that you may not go to communion?

Leaving the law aside for moment and that little anomaly there which I think is a real one. There are other things like, "I've been married for 20years to this second person, I've been going to mass every Sunday", "I go during the week", "I really take it seriously", "I brought the children up as Catholics, it means a hell of a lot to me, and I'm stuck". "I've tried everything, but I can't get nullity". So there are a lot of pastoral questions as well as legal ones.

In answer to that I will quote what was said at the National Convention this year in June and back that up by a statement here which I have just been given. Father Theodore Davy, who is a well known canon lawyer and a tribunal judge, said that as far as he was concerned, and he said this in public before the whole convention, that in the end the only people for whom this was a serious question were people who were serious about their religion. People who couldn't care less, couldn't care less. So the assumption is that the person does really want to go to communion and really needs to. That's the primary assumption, because if that weren't the case, they wouldn't be bothered.

Secondly, the only real reason why a person may not go to communion is either a public sense or a deep personal sense of being seriously sinful. If those are not present he just said, "I cannot see any reasons why the person cannot use their own conscious about this matter". At the end of that Bishop David Constant who is the local area Bishop of Central London, simply said "I would like to endorse everything Father Theodore Davey has said".

I would like to back that point by a little quote here from an article from a group of canon lawyers on the very question of "What do you do for people who cannot get nullity, who really want the sacraments and who really need the sacraments, what do you do?" Well, there is an answer. It is called the "Internal Forum" answer. It means that nothing is done legally, it's all done privately between you and the priest who is your counsellor, confessor, spiritual director or whatever, who knows you well. you've talked through the whole thing through with him and he makes a prudent decision that in your particular case the need for you to receive the sacraments is far more than the external law. This is perfectly acceptable in the church, though some people are uncomfortable about it.

This group of American lawyers has backed this up with a number of remarks which I think are fairly important. The question of whether, and we are dealing here with people who have not got nullity, cannot get one for whatever reason. The first thing is the presupposition about giving a private solution to an individual is that they have actually tried to get nullity, and have failed for a number of reasons. Assuming that is the case, then they say, the question is primary a moral question not a legal question and it involves the priest discerning the nature of the person, helping that person understand the question of conscience and the question of sinfulness. It raises the whole question about who on earth is worthy to receive the Eucharist anyway. The Eucharist is for unworthy people. This process takes place and the final judgement and decision takes place in the private forum of conscience between the individual and the priest. They mention various legal points, which I am not going to bore you with because they are pretty unintelligible to the uninitiated and I can count myself amongst those. However, they make several quite important points that the question of excommunication is not there. The person is not excommunicated, and therefore in that sense there is no excommunication bar to going to communion.

Secondly, in the new canon law, Canon 912 asserts the right of every baptised person to receive the Eucharist if not explicitly prohibited by the law. The two laws which explicitly prohibit people from communion do not mention second marriage. Firstly Canon 915 says only those people who may not go to communion are only those who have gravely and publicly committed a crime and persevere in their contumacy. Second marriage is not a crime. Secondly Canon 916 refers to those who themselves are personally conscious of grave sin and that applies to any Christian. If I think I committed a lawful sin I shouldn't go to communion. Those who are conscious of grave sin shouldn't communicate. Those are the only two grounds. Public crime and when I do think I am in grave sin. Bearing that in mind, what are the criteria for making a judgement that this person may receive the sacraments even though they have not got nullity and they have a second marriage.

These are as follows: -

a) That the first marriage has really irretrievably broken down and that reconciliation is impossible. Well that would be easily proved by the fact that the other partner had remarried, for example.

b) That there was genuine, in the context of spiritual guidance and counseling, you knew that this person was genuinely sorry for any fault in them involved in the breakdown of the marriage. Faults are very rarely on one side of the marriage, they are usually shared. So if there is genuine sorrow and the person says "I don't know what I did wrong but if there was anything where I was the cause of this, I really am sorry for it". So it is a genuine repentance.

c) That they are willing to discharge all their moral and legal responsibilities to their former wife or husband and their children of that marriage. In other words, if they say "I couldn't give a damn about them or him/her" one would begin to have doubts about their good faith as a Christian, forget about marriage. In other words they must have a Christian attitude to their former spouse and to their children.

d) That their present marriage is stable and enduring, and that genuine love, faithfulness and the care of any children involved in the second marriage seem to be appropriately being carried out.

e) That every effort be made to minimise any public scandal in giving them permission to go to the Eucharist.

f) That they really genuinely desire to live as fully as they can as Christians, and wish to be real Christian witnessess. That their faith is important to them. If those are present, then they say that any priest may make a pastoral accommodation to an individual whom he feels would benefit from the reception of the sacraments.

This is a matter of conscience not of law. It is highly questionable whether it should be put on any kind of public record that this has happened or be documented in any way. It is entirely private.

Books of interest in considering the question of annulment

A Guide to the Annulment Process.

Published by the National Board of Catholic Women. ISBN0-9537776-0-X

Marriage Annulment in the Catholic Church.

Brown, Ralph. Kevin Mayhew Ltd Suffolk

Marriage, Divorce and Annulment.

Joyce, James. [CTS pamphlet].

What God Has NOT United.

Robbins, Paul. Minerva Press.

No Way Out? The Pastoral Care of the Divorced and Remarried.

HÃ¤ring, Bernard. St Paul Publications.

Annulment-Your chance to Remarry within the Catholic Church.

Zwack, Joseph P. Harper & Row Publishers, London.

The Pain and the Possibility. An affirming and Healing Guide for the Divorced and Separated and their Families.